Criminal Law: the Process

We know when a crime exists (actus reus and mens rea), so what happens after a crime has been committed?

THE LEVELS OF POLICE IN CANADA

Federal – RCMP – responsible for all federal law under the Criminal Code and federal regulations

Provincial Police

Municipal Police

Aboriginal Police

DETERMINE THE PARTIES INVOLVED

The perpetrator (the person who committed the crime)

Parties to the offence

Aiding (helping)

Abetting (encouraging)

Counselling (advising, recommending, persuading)

Accessory after the fact (assist in escaping the police)

Party to common intention (shared responsibility for additional offences committed in the course of the crime they originally intended to commit, i.e. 5 of you go to steal a truck, one kills the driver. ALL are responsible for killing the driver.)

Identifying and collecting physical evidence (evidence found at the scene that might link a suspect with the crime)

i. Tools

Class characteristics

Individual characteristics

ii. Impressions

fingerprints (latent and visible) THE BEST EVIDENCE AS NO ONE HAS THE SAME FINGERPRINTS, NOT EVEN IDENTICAL TWINS

shoe prints

tire tracks

gloves

iii. Body elements and DNA (blood, semen, saliva, etc.)

Depending on the evidence, the police may make an arrest before or after questioning

Questioning suspects/witnesses

i. Informed of rights when questioned (i.e. right to remain silent)

ii. 4 stage interrogation techniques:

Describe the incident

Describe the period before the offence took place

Describe the details of the offence

Describe the period following the offence

The police can either ARREST or DETAIN a suspect.

i. To be DETAINED means to be legally deprived of your liberty for the purpose of asking questions, with or without physical restraint

A person cannot be detained unless the police have good reason to do so.

When you have been stopped to answer questions, you have been detained, but you do NOT have to answer any questions, not even your name.

Detention should lead quickly to either arrest or release. If you are detained against your will then the detention is illegal and you can demand to speak to a lawyer, collect the officer’s badge number, and gather witnesses, HOWEVER, it is always advisable to cooperate with the police.

ii. ARREST is to legally deprive someone of their liberty by seizing or touching the person to indicate they are in custody. There must be REASONABLE AND PROBABLE GROUNDS that the person was involved in a crime. This means that based on the information available, a reasonable person would conclude that the suspect had committed a criminal offence.

iii. 3 methods to apprehend an offender

Issue an APPEARANCE NOTICE, requesting the offender appear in court on a specified date and specific time

Police must ask judge or justice of the peace to issue a SUMMONS, which orders the accused to appear in court.

Fear of no show in court – police swear an INFORMATION (inform the Court of the details of the offence) and then the Judge or Justice of the Peace decides whether or not an ARREST WARRANT is justified.

Arrest the suspect WITHOUT A WARRANT – can only be done in 3 circumstances:

If there is reasonable grounds to believe the person has committed or is about to commit an indictable offence;

If they find a person in the act of committing a criminal offence;

If they find a person whom they believe is named on an arrest warrant.

iv. Four steps to make an ARREST LAWFUL:

Identify his/herself as a police officer;

Advise the accused they are under arrest and inform them of the charge

Advise the accused of their rights (to remain silent, right to a lawyer)

Physically touch the accused to signify that they are in custody.

v. If the accused RESISTS ARREST, the police can use “as much force as is necessary” to prevent an escape. Serious or deadly force can be used when:

The behaviour of the suspect might cause serious harm or death to others;

The suspect flees to escape arrest;

There is no alternative means to prevent escape.

vi. Sometimes, citizens may make an arrest if

They catch someone in the commission of an indictable offence

They catch someone they believe has committed a criminal offence and they are escaping from the police

ARREST AND DETENTION

Citizen’s arrests do not happen often as people are afraid of being sued for false arrest or being injured.

AFTER THE ARREST IS MADE – PRE TRIAL PROCEDURES

SEARCH

The investigators will continue to SEARCH for evidence. Sometimes, the search occurs before the accused is arrested; sometimes it occurs after. The police can arrest before obtaining a SEARCH WARRANT if they have reasonable grounds to believe the person has committed or is about to commit a crime.

There are rules of search and seizure, and if they are not followed, the court can throw out any illegally obtained evidence and possibly end the trial.

Searching a person

i. no warrant needed if they have arrested the person or if the police believe the person is carrying a concealed weapon – SEARCH INCIDENT TO ARREST

ii. Do not need to provide a breath, blood or urine sample unless you are suspected of impaired driving. If the police want one, they must provide a warrant

Searching a place:

i. Must obtain a search warrant if it is a person’s private dwelling

ii. Only between the hours of 6:00am and 9:00pm

iii. Can only search the dwelling on the search warrant for the evidence/items listed on the warrant, unless other illegal items are found in the process (i.e. in plain view). If other illegal items are found, then additional charges can be laid based on that evidence.

iv. Search warrants are also needed when the police use electronic or video surveillance

v. TELEWARRANTS (a warrant obtained over the phone or by fax) can be used in situations where the police believe they have to act quickly.

Exceptions – EXINGENT CIRCUMSTANCES:

Where illegal drugs are involved, the police can search any place except a private residence without a warrant

If there is a fear that evidence might be destroyed or that someone might be harmed, police may search without a warrant.

At ride programs or spot checks, the police can search your car without a warrant BUT they cannot search for anything that is not in plain view (i.e. no trunk), or on the basis of smell alone i.e. search for marijuana in a car only if they SEE it. If the police suspect illegal weapons or drugs, they can search the car.

b. FULL DISCLOSURE

this is where the Crown advises the accused of any evidence they intend on presenting at trial, whether it be physical evidence or witness testimony. The defence only has to inform the Crown of whether or not the defence will present an alibi defence, so the Crown will have the opportunity to question the alibi.

For indictable offences, the accused’s photograph and fingerprints are taken.

Incarceration is seen as the greatest infringement on one’s liberty, so the courts like to do what they can to release an offender (remember, you are innocent until proven guilty, so to keep a suspect incarcerated is like saying they are guilty before it has been proven).

Offenders can be released by

PRE-TRIAL RELEASE

i. Signing a promise to appear – for minor offences, a document is signed promising that the accused will appear in court on a set date at a set time.

ii. A RECOGNIZANCE might be signed, where the accused agrees to return for court, and could face a fine of up to $500 if they don’t

iii. A recognizance with a SURETY is provided – a surety is someone who agrees to pay up if the accused does not appear in court.

iv. Posting BAIL – not really favoured anymore as it discriminates against those who are poor. Bail is for serious offences, and if the accused refuses to show up for court, whoever posted the bail will lose their money.

A bail hearing must take place within 24hrs.

Suspects have the right to HABEAS CORPUS – a fair and speedy trial, and must be brought before a judge within 24 hours of being taken in to custody to explain why they have not been released.

Sometimes the Crown might ask that the accused not be released. If this is the case, a SHOW CAUSE hearing is held where the Crown must show cause as to why the accused shouldn’t be released i.e. flight risk, risk to public safety, etc.

REVERSE ONUS might apply where the defence would be required to show why bail should be granted. This happens when:

i. The charge is murder

ii. The accused committed an indictable offence when out on bail

iii. The offence is indictable and the accused is not a Canadian resident

iv. The charge involves failure to appear or breach of a bail condition

v. The accused is charged with importing, trafficking, or possession for the purpose of trafficking narcotics.

vi. The accused used a firearm while committing certain serious offences (attempted murder, discharging a firearm with intent, sexual assault with a weapon, etc.)

vii. The accused is under a firearms prohibition order and they are charged with an indictable firearms offence

viii. The accused is charged with trafficking, possession for the purpose of trafficking, or smuggling firearms.

Once release is determined, the court date is set and, depending on the type of offence, the accused may choose trial by judge alone, or trial by judge and jury. In serious indictable offences, all trials are by judge and jury. This decision will determine what court the trial will take place in

ii. Superior Provincial Court – the court of SUPERIOR JURISDICTION – tries serious indictable offences, such as murder and treason; trial is by judge and jury; also hears appeals.

The trial date is set and the accused will enter their plea – GUILTY OR NOT GUILTY. 90% of those arrested and accused of committing a crime plead guilty, and consequently no trial takes place, just a sentencing hearing for indictable offences; for summary conviction or minor indictable offences, sentencing takes place immediately.

For serious crimes, a PRELIMINARY HEARING takes place where the court determines if there is enough evidence to proceed.

After a plea of not guilty is entered, RESOLUTION DISCUSSIONS take place before the trial begins – these are “plea bargains or plea negotiations” – very controversial i.e. Karla Homolka’s plea bargain is considered a plea with the devil, however many legal scholars argue that if plea bargains were discontinued it would take a lot longer and would be a lot more difficult to arrest, try and convict.

TRIAL PROCEDURES

TRIAL PARTICIPANTS

i. Judge/Justice of the Peace

ii. Counsel:

The Crown (prosecutor)

The Defence

Duty – gives free legal advice to accused.

iii. Court Clerk – assists the Judge

iv. Court Reporter – records everything said during the trial

v. Court Security Officer – maintains security in the courtroom

vi. Sheriff – responsible for managing the jury

vii. Bailiff – assists the Sheriff

viii. Witnesses

ix. The jury

THE ROLE OF THE JURY

12 people chosen at random

EMPANELLING – the selection of a jury

QUALIFICATIONS:

i. Must be Canadian citizens

ii. Must be at least 18

iii. Must have resided in the province or territory for at least 1 year

iv. Must speak English or French

v. Must be mentally fit

EXEMPTIONS:

i. MPs, senators, and MPPs

ii. Judges, justices of the peace, lawyers, law students

iii. Doctors, coroners, veterinarians

iv. Anyone employed in law enforcement and their spouses

v. People who are visually impaired

vi. People with a mental or physical disability that seriously impairs their ability to complete jury duty

vii. Anyone who has served on a jury within the presiding two or three years

viii. Anyone convicted of an indictable offence that has not been pardoned.

CHALLENGES

i. CHALLENGE OF THE JURY LIST

Needs proof that the sheriff or selection committee was fraudulent or biased, or showed wilful misconduct in selecting prospective jurors.

ii. CHALLENGE FOR CAUSE

Objection of a juror for specific reasons, i.e. already informed an opinion on the case;

Unlimited

iii. PEREMPTORY CHALLENGE

Objection of juror for no specific reason;

Limited depending on the charges:

Serious charges i.e. first-degree murder – 20 challenges

Where the penalty is 5+ years – 12 challenges

Where the penalty is under 5 years – 4 challenges

JURY DUTY

Jurors are not allowed to:

Discuss the case with anyone other than the other jurors;

Follow media reports about the case

Disclose any information from jury discussions that is not revealed in open court even after the conclusion of the trial

Sometimes, the jury is SEQUESTERED – separated from external influences until a verdict is decided.